In motion no. M-72645, defendant moves to dismiss the claim of Carlos Figueroa.
Mr. Figueroa cross-moves for an order compelling the production of documents
(cross-motion no. CM-72938). He also moves for permission to proceed as a poor
person and for the appointment of counsel (motion no. M-73620), to strike
defendant’s affirmative defenses (motion no.
M-73848)[1] and for permission to file a late
claim pursuant to §10.6 of the Court of Claims Act (motion no. M-74265).

In his underlying claim, Figueroa alleges that in May of 1997, attorney
Alexander Sanchez was assigned to represent him in connection with certain
criminal charges against him. Claimant further alleges that Sanchez failed to
adequately represent him in that he agreed to accept an adjournment in
contemplation of dismissal without first obtaining claimant’s consent.
Figueroa contends that this resolution of the criminal case led to the dismissal
of his subsequent federal action for malicious prosecution because it was not
considered a dismissal on the merits. Claimant names as defendants in this case
the State of New York and attorney Sanchez. As an initial matter, it should be
noted that this court has no jurisdiction over individual persons such as Mr.
Sanchez. See, e.g., Smith v State of New York, 72 AD2d 937, 938, 422
NYS2d 221, 222 (4th Dept 1979), affd 59 NY2d 718, 463 NYS2d 439 (1983).

Moreover, the State of New York cannot be held liable for the misconduct or
malpractice of private attorneys appointed to represent defendants in criminal
actions. See, e.g., Harley v State of New York, Ct Cl, January
25, 2001 (unreported, claim no. 101666, motion no. M-61156, UID
#2001-016-006[2], Marin, J.). To the extent that
claimant alleges federal constitutional violations, the Court of Claims does not
have jurisdiction over such claims. Brown v State of New York, 89 NY2d
172, 652 NYS2d 223 (1996). In order to prevail on a claim for state
constitutional violations, claimant must demonstrate that he did not have
another remedy - - such as a legal malpractice action against his attorney.
Martinez v City of Schenectady, 97 NY2d 78, 735 NYS2d 868 (2001);
Waxter v State of New York, 33 AD3d 1180, 826 NYS2d 753 (2006).

With regard to claimant’s motion for permission to file a late claim,
having shown no valid cause of action, it would be futile to permit a legally
deficient claim to proceed. Prusack v State of New York, 117 AD2d 729,
498 NYS2d 455 (2d Dept 1986).

Accordingly, having reviewed the submissions[3],
IT IS ORDERED that motion no. M-72645 be granted and that claim no. 112854 be
dismissed. As to cross-motion no. CM-72938, motion no. M-73620 and M-73848, IT
IS ORDERED that they be denied as moot. Finally, IT IS ORDERED that motion no.
M-74265 be denied.

December 16, 2008New
York, New York

HON. ALAN C. MARINJudge of the Court of Claims

[1]As defendant made a pre-answer motion to
dismiss and thus did not interpose an answer, no affirmative defenses have been
asserted. The court will thus consider claimant’s motion papers on
motion no. M-73848 as opposition to defendant’s motion to dismiss.

[3]The following were reviewed: defendant’s
notice of motion no. M-72645 with affirmation in support and exhibits;
claimant’s notice of cross-motion no. CM-72938 with “Motion for
Production of Documents” and exhibits; defendant’s
“Affirmation in Opposition” on motion no. M-72645 and cross-motion
no. CM-72938 with exhibits; claimant’s notice of motion no. M-73620 with
affidavit in support and exhibits; claimant’s notice of motion no. M-73848
with affidavit in support and exhibits; defendant’s “Affirmation in
Further Support of the State’s Motion and in Opposition to
Claimant’s Cross-Motion” with exhibit; “Claimant[’]s
Second Reply to the State’s Motion to Dismiss the Herein Claim” with
affidavit in support and exhibits; claimant’s notice of motion no. M-74265
with affidavit in support and exhibits; defendant’s “Affirmation in
Further Support of the State’s Motion and in Opposition to
Claimant’s Motion” referencing motion no. M-74265; and
Claimant’s “Reply To: Affirmation in Further Support of the
State’s Motion and in Opposition to Claimant’s Motion,”
referencing motion no. M-74265, with Memorandum of Law.